Skip to content


Raja Bhupendra NaraIn Singh Bahdur and ors. Vs. Madar Bux Sheikh and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal296,66Ind.Cas.793
AppellantRaja Bhupendra NaraIn Singh Bahdur and ors.
RespondentMadar Bux Sheikh and ors.
Cases ReferredMaharajah of Burduan v. Tarasunldari Dasi
Excerpt:
palni regulation (viii of 1819), sections 8, 10 - patni sale for arrears of rent--notice, contents of--zemindar's responsibility--non-conformity with requirements of patni regulation--sale, validity of. - .....public sale in liquidation. this must be read with section 10, which provides that at the time of sale, the notice previously stuck up in the cutahery shall be taken down and the lots be tailed up suesessively in the order in which they may be found in that notice. this makes it plain that section 10 contemplates a self-contained notice, which comprises not only a specification of the arrears and notification that the sale will be held on the let jaistha if the amount claimed be not paid before that date, bat also e. statement of the lots proposed to be sold in the order in whish the sale will be held. this conclusion is confirmed by an important provision contained in section 8, clause (2) which is expressed in the following terms: 'a similar notice shall bestnak up at the sadar.....
Judgment:

1. This is an appeal by the zemindar defendant in a suit commenced on the 12fch April 1915 under Section 14 of Regulation VIII of 1819 for reversal of the sale of a patni taluk held under the Regulation on the 15th May 1914. The validity of the sale was attacked on a variety of grounds. One of these grounds was that the requirements of Section 8 of the Regulation had not been fulfilled; and this was formulated in the ninth issue in the following term:

Were the Astom petition, notice, istahar and all the proceedings connected therewith, good and valid according to law and were notice and istahar duly served.

2. The District Judge has answered this question in favour of the putnidar an J has, for this reason, set aside the sale as invalid. On the present appeal by the semindar, the conclusions of the District Judge have been assailed as erroneous.

3. Sections, Clause 10 I. A. 19 : 9 C 619 : 13 C. L. R.34 : 4 sar, P.C.J.414 : 7 Ind .Jur .212;4 Ind. Dec.(n.s.)1031 (p.c) of the Patni Regulation requires the zernindir to present a petition to the Collector containing a specification of any balance due to him on account of the expired year from all or any patni talukdart.

4. This petition must be stuck up in game con-specious part of the Collector's Cut Cheri with a notice that if the amount claimed be not paid before the 1st Jaistha following, the tenure of the defaulter will on that day be sold by public sale in liquidation. This must be read with Section 10, which provides that at the time of sale, the notice previously stuck up in the Cutahery shall be taken down and the lots be tailed up suesessively in the order in which they may be found in that notice. This makes it plain that Section 10 contemplates a self-contained notice, which comprises not only a specification of the arrears and notification that the sale will be held on the let Jaistha if the amount claimed be not paid before that date, bat also e. statement of the lots proposed to be sold in the order in whish the sale will be held. This conclusion is confirmed by an important provision contained in Section 8, Clause (2) which is expressed in the following terms: 'A similar notice shall bestnak up at the Sadar Gutohery of the etmindar himself, and a copy or extract of scab part of the notice as may apply to the individual case shall be by him sent, to be similarly published at the Cutahery, or at the principal town or village upon the land of the defaulter ' This leaves no room for doubt that the notice to be stuck up in the Cutahery of the Collector, like the petition, must contain specification of the balances that may be due to the zemindar concerned from all the patnidars under him and that a copy or extract of such part of the notice as may apply to an individual defaulter shall be sent by the tern, near to be similarly published at the Cutahery or at the principal town or village upon the land of the defaulter. There can thus be no serious con-traverse as to the correctness of the view adopted by this Court in the case of Enjoy Rrithna v. Lakthmi Narain54 Ind. Cas. 736| 90 C. L. J. 433| 47 C. 337 : 24 C, W.N. 972. regarding the contents of the notice which is required to be stuck up in the Cutahery of the Collector under Section 8 and to be taken down at the time of the sale under Section 10, so that the lots may be sailed up successively in the order in which they may be found in that notice.

5. We have now to judge by this test, whether the zemindar who is exclusively answerable for the observance of the forms prescribed in Section 8, Clause (2), has established that the statutory requirements were carried out, The notice which has been produced (Exhibit P) obviously does not fulfill the requirements of the Regulation; it does not contain a specification of the balances due from all the patriarch; it mentions only the patni, now in suit, though the oral evidence makes it clear that 'there were about forty Astam cases in which the Raja of Nashipore was interested.' The zemindar has consequently been driven to bring forward oral evidence to establish that another notice, showing all the defaulting patnidart and the balances due from each of them was stuck up as required by the Regulation, Sailajaprasad Sengupta deposes that while he was Jamanabis in the service of the Maharaja of Nashipore, a notice used to be drawn up showing all defaulting patnidars in two parts-one was published in the Sadar Cutahery of the zemindar and the other was sent to the Raj Pleader, Sasibhushan Chaudhuri, at Birbhum. The Pleader, who is also the am mukhtear of the zemindar, has been examined. He asserts that he stuck up in the Collectorate two notices of Astam sales, one, of the mal, and the other, of the debutter mahal. The District Judge has not accepted this assertion, and after careful consideration of all the circumstances, we are unable to disagree with him. The memory of the witness as to the time when the alleged notices were put up is clearly at fault. Me asserts that he raw stuck up on the notice-board of the Collector the notice (Exhibit P) before the 12th or 13th Baisak, and he fortifies this statement by the further assertion that he examined the board between the 10th and the 13th. This must be incorrect, because the peon, who stuck up the notices, did not receive them for publication till the 14th Baisak. Apart from this, no explanation is forthcoming why notices in repeat of individual patnis should be stuck up, though not required by the Regulation, and complete notices as required by the Regulation should be subsequently stuck up. Besides, it is a matter for legitimate comment that while the notice (Exhibit P) was stuck up by the Collectorate peon in the discharge of his usual duties, the alleged comprehensive notice was put up by the am-muhtear. It does seem strange that a private individual should stick up the proper notice as required by the Regulation, while the inappropriate, notice is stuck up by the officer concerned. The evidence also shows that the notice-board is in a glass ease, that there an iron-safes and chests about a ambit below the place where the notices are hang, and that a sentry armed with gun walks up and down by that place. An attempt by a stranger to stick up notice on a notice-board bo placed should not fail to attract attention, and independent evidence might be expected of the endeavor made by the witness to comply with the requirements of the Statute. There is finally the significant fast that the notices alleged to have been stuck up by the witness on the notice board of the Collector were got found on the resorted, which contained, however, the notice (Exhibit P), In these circumstances, we are not prepared as a Court of Appeal to pronounce the opinion that the view taken by the Trial Court is erroneous. But even if it were conceded that the requisite notice had been put up by the am-muktear as alleged by him, there is no evidence to show that it was taken down at the time of the sale as required by Section 10 and that the lots were sailed up successively in the order in which they stood in that notice. Indeed, the notice does not appear to have been seen by any one except the am muktear. In this sonnes-tior, we must take the statement of Upendi anath Sadhu, who was the revenue Pushcart of the Collector at the time, that the Maharaja of Nashipore always has a separate petition for each tenure. 1 he witness was present with the Collector when the patni was sold and so also was the am-muhtear of the zemindar. The witness asserts that the am muhtear filed before the Collector a list of arrears and the Muffasil notice, that the witness read them to the Collector who signed them and then the sale took place. To the same effect is the testimony of Anantalal Ghosal, another assistant in the Collectorate who was present at the sale. The evidence of Surendra Mohan Kar, who was the Naib Nazir of the Collectorate at the time, does not afford the slightest indication that the notice alleged to have been put up by the am-muhtear had ever been stuck up or seen by anybody or taken down at the time of the sale. He asserts that on the 27th April,the 14th Baisakh,OASES.795 the records of the Astam case were made over to Sheikh Amien the peon (since deceased ) for Publication that the witness himself went later and found that the records were later and found that the records were hung up in their in the proper place that they remained there till the day of sale, and that on that day the we brought down and arranged by the ness and sent to the revenue Peshkar with reports of service by the poen, The witness added that from the publication until they were returned to the Munshikhana, they remained in charge of publication until they were returned to the Munshikhana, they remained in charge of the nazir (who has died since )and that he himself had never noticed any record short when the record was brought down If the additional notice, alleged to have been put up by the am-muktear himself ,had been on the notice board when the records were brought down on the of sale and arranged by this witness should hardly have escaped his notice. On a review of the evidence relevant to this question we have in concurrence with the District-Judge that the memindar has not discharged the burden, which the law impose upon him to establish that a notice fulfilling the requirement of Section 8 was stuck up in some conspicuous part of the Cut chary of the Only notice which is shown to have been stuck up those not satisfy requiresment. This by self is fatal to the sale for as repeatedly emphasized by this Court as also by the Judical Committee strict conformity with the requirements of the Regulation in respect of the contents and service of the notice mentioned in Section 8 and 10 is essential to secure a valid sale; Maharajah of Burduan v. Tarasunldari Dasi14 I. A. 30, l4 C.365: ,11 Ind. Jur.275 : 4 sar. P.C.J. 772 Ind.Dec.(N.S.) 1031(P.C.),Ahsanulla Khan affirmed in Ahsanulla Khan Bahadur v.Mahomed Gozi Chouidhry(6), Rajnarain Mitra v.Ananta Lal(7).In view of our conclusion on this paint, it is not necessary to investigate whether there was due service of the requisite notice at the Sadar Cutshery of the reminder and at the Cutahery or at the principal town or villa ore upon the land of the defaulter. The District Judge has held that the reminder has failed to prove by satisfactory evidence that those notices were really or properly published. His criticisms on the evidence may, in some places, seem unduly searching, bat it is needless for us to embark upon a review of his conclusion Basel upon an appreciation ahictly of oral testimony, of oral testimony as in our opinion, the sale must be cancelled on the ground already stated.

6. The result is that the decree made by the District Judge is affirmed and this appall dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //